On Friday, the Cynical Musician posted an article titled Demystifying Creativity, in which he asks the question, “What is creativity?” It’s an interesting post, worth a read, and it got me thinking.

I find myself in agreement with much of what Faza says, but I wanted to look at the question through the lens of copyright law. To do so, I’ll eventually get to The Hunger Games. But first, I’d like to look at the concept of “genius.”

Genius and Generation

Copyright, at its dawn in the US, was often spoken of in terms of “genius.” In March 1783, the US Continental Congress appointed a committee to “consider the most proper means of cherishing genius and useful arts through the United States by securing to authors or publishers of new books their property in such works.” 124 Journals of the Continental Congress 180. In May, the committee issued its report, stating that it was “persuaded that nothing is more properly a man’s own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius.” 224 Journals of the Continental Congress 326. The pre-constitutional state copyright statutes of Connecticut, Georgia, and New Hampshire were titled Acts “for the encouragement of literature and genius.” The acts of New York and North Carolina both adopted the Continental Congress’s language that securing the rights of literary property would encourage genius and “persons of learning and genius”. During the ratification of the Constitution, future Supreme Court Justice James Iredell also referred to the Copyright Clause as an encouragement to genius. 3Answers to Mr. Mason’s Objections to the New Constitution Recommended by the Late Convention at Philadelphia, in Pamphlets on the Constitution of the United States, pg. 361 (1788).

Nowadays, we often think of a “genius” as someone with exceptional intelligence. But at the time, the term was broader: “a man endowed with superior faculties; mental power or faculties; disposition of nature by which any one is qualified for some peculiar employment.” 4Thomas Sheridan, A General Dictionary of the English Language (1780). The word comes from the Latin genius, an aspect of ancient Roman religion. It was used both to describe the “guardian deity or spirit which watches over each person from birth” 5“Genius“, Online Etymology Dictionary. and the “rational soul of every one.” 6St. Augustine, City of God, VII.13 (trans. Marcus Dods, 1887).

The latin term itself is derived from the Proto-Indo-European root “*gen-“, meaning “to produce” or “to beget”, and it shares a common heritage with words like “generate”. I mention this because it is interesting how the purpose of copyright, to encourage genius, and the scope of copyright, protection over what a creator generates, share an etymological relationship.

To qualify for copyright protection, a work must be original to the author. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. …

Originality is a constitutional requirement. The source of Congress’ power to enact copyright laws is Article I, § 8, cl. 8, of the Constitution, which authorizes Congress to “secur[e] for limited Times to Authors . . . the exclusive Right to their respective Writings.” In two decisions from the late 19th century—The Trade-Mark Cases, 100 U. S. 82 (1879); and Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53 (1884)—this Court defined the crucial terms “authors” and “writings.” In so doing, the Court made it unmistakably clear that these terms presuppose a degree of originality.

In The Trade-Mark Cases, the Court addressed the constitutional scope of “writings.” For a particular work to be classified “under the head of writings of authors,” the Court determined, “originality is required.” The Court explained that originality requires independent creation plus a modicum of creativity: “[W]hile the word writings may be liberally construed, as it has been, to include original designs for engraving, prints, &c., it is only such as are original, and are founded in the creative powers of the mind. The writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like.”

In Burrow-Giles, the Court distilled the same requirement from the Constitution’s use of the word “authors.” The Court defined “author,” in a constitutional sense, to mean “he to whom anything owes its origin; originator; maker.” 8Id. at 345-46.

The idea/expression distinction is derived from this same reasoning. Facts and ideas do not owe their origin to any individual.

The author of a book comes to the great ocean of human thought which belongs to all; he dips up a portion of the brine, evaporates it, causes it to crystallize, purifies the crystals from unpleasant ingredients, and presents it in a new form, a form by which it is made his own. He enters the great forest of ideas, which is common ground, hews down trees, shapes them into articles of furniture, or builds a house with them, and he who takes from him that furniture is a thief, and he who breaks into that house is a burglar. The author clothes ideas in words of his own selection, forms the words into sentences of his own construction, gives the ideas his own arrangement, combines and illustrates them in his own manner, and in this state they are his own, made so by his labor, skill and invention, and they belong as properly to him as the product of salt-works on the edge of the sea belongs to the manufacturer. 9Speech of William Cullen Bryant, International Copyright: Meeting of Authors and Publishers, at the rooms of the New York Historical Society, pg. 14 (1868).

“No Man Writes Exclusively”

Above, we see recognition of the fact that creators always build on the works of the past. No creator creates in isolation, but instead “stands on the shoulders of giants.” And progress in the arts and sciences is made by encouraging genius: the originality that a creator generates.

Justice Story said as much in 1845:

In truth, in literature, in science and in art, there are, and can be, few, if any, things, which, in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before. No man creates a new language for himself, at least if he be a wise man, in writing a book. He contents himself with the use of language already known and used and understood by others. No man writes exclusively from his own thoughts, unaided and uninstructed by the thoughts of others. The thoughts of every man are, more or less, a combination of what other men have thought and expressed, although they may be modified, exalted, or improved by his own genius or reflection. If no book could be the subject of copy-right which was not new and original in the elements of which it is composed, there could be no ground for any copy-right in modern times, and we should be obliged to ascend very high, even in antiquity, to find a work entitled to such eminence. Virgil borrowed much from Homer; Bacon drew from earlier as well as contemporary minds; Coke exhausted all the known learning of his profession; and even Shakespeare and Milton, so justly and proudly our boast as the brightest originals would be found to have gathered much from the abundant stores of current knowledge and classical studies in their days. [Emphasis added.] 10Emerson v. Davies, 8 F.Cas. 615 (D. Mass. 1845).

Even classical fair use can be said to embrace these ideas. “From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, “[t]o promote the Progress of Science and useful Arts.” 11Campbell v. Acuff-Rose Music, 510 US 569, 575 (1994).

[T]he author’s consent to a reasonable use of his copyrighted works ha[d] always been implied by the courts as a necessary incident of the constitutional policy of promoting the progress of science and the useful arts, since a prohibition of such use would inhibit subsequent writers from attempting to improve upon prior works and thus . . . frustrate the very ends sought to be attained. 12Harper & Row, Publishers v. Nation Enterprises, 471 US 539, 549 (1985), quoting H. Ball, Law of Copyright and Literary Property 260 (1944).

It’s a misnomer, then, to claim that the idea that “everything is a remix” somehow negates the basis for copyright.

But there are those who do indeed claim that the idea that creativity is built on the past is foreign to a legal framework that protects specific expression. There are those who say copyright “stifles” creativity, or those who say, “our system of law doesn’t acknowledge the derivative nature of creativity”, or academics who quote Michel Foulcault and speak of the notion of “Romantic authorship” — even though the cumulative nature of creativity is baked into copyright law.

The Genius of The Hunger Games

Suzanne Collins’ hit trilogy (and now feature film) tells the tale of a dystopian future where children are forced to battle to the death. Since it was published, a few have compared it to the 2000 Japanese film Battle Royale, about a dystopian future where children are forced to battle to the death. Some have even asked if the former was a rip-off of the latter. Collins, however, has said in interviews that she had never watched Battle Royale before writing her books, 13In order to copy a work, one must have seen the work. In a copyright infringement case, access to the work is one of the elements the plaintiff must prove, see, e.g., Ferguson v. National Broadcasting, 584 F.2d 111 (5th Cir. 1978). and aside from the central conceit, both stories differ substantially.

In other interviews, though, Collins admits that she had drawn inspiration from another, existing story: the ancient Greek myth of Theseus and the Minotaur. Says Collins, “In her own way, Katniss [the heroine of The Hunger Games] is a futuristic Theseus.” And in its own way, Hunger Games is a “remix” of the ancient Greek myth.

But would it be copyright infringement? Obviously, the myth of Theseus was written thousands of years before copyright even existed, but let’s say it wasn’t. And obviously, as with most myths, there is no single, definative version of the story, but let’s say there was (for example, Plutarch’s version, 75 A.D., trans. John Dryden). Even then, there wouldn’t be any verbatim copying between the two. And you’d be hard-pressed to make the case for nonliteral substantial similarity between the stories. 14As the Second Circuit has stated, substantial similarity “requires that the copying [be] quantitatively and qualitatively sufficient to support the legal conclusion that infringement (actionable copying) has occurred. The qualitative component concerns the copying of expression, rather than ideas [, facts, works in the public domain, or any other non-protectable elements]…. The quantitative component generally concerns the amount of the copyrighted work that is copied.” Castle Rock Entertainment v. Carol Publishing Group, 150 F.3d 132, 138 (1998), quoting Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70, 75 (2d Cir. 1997). Though the two may share some plot elements and stock characters, the differences far surpass any similarities.

The Hunger Games, in other words, though it builds on existing works, is decidedly original in the copyright sense; it is a product of Collins’ genius in the classical sense.

In order to copy a work, one must have seen the work. In a copyright infringement case, access to the work is one of the elements the plaintiff must prove, see, e.g., Ferguson v. National Broadcasting, 584 F.2d 111 (5th Cir. 1978).

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As the Second Circuit has stated, substantial similarity “requires that the copying [be] quantitatively and qualitatively sufficient to support the legal conclusion that infringement (actionable copying) has occurred. The qualitative component concerns the copying of expression, rather than ideas [, facts, works in the public domain, or any other non-protectable elements]…. The quantitative component generally concerns the amount of the copyrighted work that is copied.” Castle Rock Entertainment v. Carol Publishing Group, 150 F.3d 132, 138 (1998), quoting Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70, 75 (2d Cir. 1997).

Great article!
A few comments:
1. This reminds me of an argument I had with an anti-copyright advocate once. He argued the “stifles innovation” line and mentioned that Matt Groening did not own the Simpsons, Fox did. i pointed out that it was precisely because he knew Fox would own his TV show that Matt Groening created the Simpsons, rather than just sell them Life In Hell. As well, George Lucas originally wanted to do Flash Gordon but De Laurentiis owned the rights. Lucas ended up creating Star Wars…(This guy also argued the “lecture circuit” solution for authors. I pointed out that this wouldn’t help, say, Thomas Pynchon, and he replied that Pynchon would just have to “innovate”…. Argh.
2. One of my least favourite literary trends is the horror mashup – Pride and Prejudice and Zombies, etc. Compare this, with say, I Walked With A Zombie, a movie that literally recasts Jane Eyre in a voodoo setting but in such a way that would not infringe on Bronte’s original had the copyright been in place. To suggest as some have that merely inserting new text into a Public Domain work is no different than making a whole new story based on a classic plot is ridiculous…

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Copyhype provides news and info on current developments relating to copyright law, the media industries, and the digital economy. It cuts through the hype to bring reasoned discussion aimed at both legal and nonlegal audiences.

Terry Hart is currently VP Legal Policy and Copyright Counsel at the Copyright Alliance. Any opinions expressed on this site remain his own and not necessarily those of his present or any past employers.